IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160005405 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160005405 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160005405 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, an upgrade of his under other than honorable conditions character of service. 2. The applicant states when he was interviewed by an Army officer in 1978, he was told he had enough credits to graduate; however, his discharge paperwork indicates that he does not have a high school diploma. He further states he has been diagnosed with a medical condition and would like to further his education. 3. The applicant provides: * two self-authored statements * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army (RA) on 6 December 1978. At the time, he was over 18 years of age. 3. On 21 August 1980, court-martial charges were preferred against him for violating Article 86, Uniform Code of Military Justice (UCMJ), for on or about 13 May 1979, without authority, absenting himself from his unit and remaining absent until on or about 23 July 1980. 4. On 20 August 1980, the applicant met with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged he understood he could request a discharge for the good of the service because court-martial charges had been preferred against him under the UCMJ, which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he was making his request by his own free will and had not been subjected to any coercion whatsoever by any person. He also acknowledged he had been advised of the implications attached to his request for discharge and understood that by submitting this request he was acknowledging he was guilty of at least one of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. Moreover, he stated that under no circumstance did he desire further rehabilitation, for he had no desire to perform further military service. a.  He acknowledged that, prior to completing his request for discharge, he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, and any relevant lesser-included offenses. Counsel also advised him of the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty. b.  He acknowledged he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions. He also acknowledged counsel advised him of and he understood the possible effects of a punitive discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits. He also acknowledged he understood that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws. He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge. c.  He acknowledged he understood that once he submitted his request, he could withdraw it only with the separation authority's consent or without the separation authority's consent if his trial resulted in an acquittal or if his sentence did not include a punitive discharge. He submitted a statement in his own behalf in which he claimed he went home on leave and found his mother was seriously ill. She had quit work and the bills were piling up. He called Fort Gordon, GA, for an extension of his leave; however, it was denied. He went to the military station in Jackson, MS, to see if he could get a hardship discharge and was told he would have to report to Germany to apply for it. His mother was subsequently diagnosed with a cancerous tumor so he got a job and took care of the home front until she finished with her cancer treatments. 5. On 22 August 1980, in view of the applicant's attitude toward the military and his lack of rehabilitative potential, his immediate commander recommended approval of his request with a discharge under other than honorable conditions. 6.  On 4 December 1980, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 19 December 1980, he was discharged accordingly. 7.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with characterization of his service as under other than honorable conditions. He completed 10 months and 9 days of total active service with time lost for the period 18 May 1979 to 22 July 1980. 8.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 9.  The applicant provides a self-authored statement in which he claims: a.  The number one reason he went absent without leave (AWOL) was that his mother was very ill and he thought she would pass away. He was young, alone and afraid and he did not know who to turn to so he went AWOL and returned home. Once he was home, he was relieved to see that his mother was okay. He was happy that he was now in a comfortable environment, but he was sad because he knew he would have to return to the military. He came from a poor family where his mother was the sole provider for seven children. His mother could no longer work because of the treatments she was receiving and things at home were going from bad to worse. At that point, he decided he was not going to return to the military. He decided he would get a job and take care of his mother and his six siblings. b.  He is 55 years old and having some health issues. He regrets not finishing his military obligation and he has paid a hefty price in life for not doing so. He is a peer support specialist and through the program he discovered he does not have a high school diploma. He wants to get his life back on track and is in the process of obtaining a General Equivalency Diploma. He believes an upgrade of the character of his service will assist him in this endeavor. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 10 provides that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after the charges had been preferred and must have included the individual’s admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b.  Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c.  Paragraph 3-7c states that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. DISCUSSION: 1.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request he acknowledged he was guilty of the charge against him which also authorized the imposition of a bad conduct or dishonorable discharge. 2.  Notwithstanding his self-authored statement in which he appears to request medical and educational assistance, these requests in and of themselves are not normally the basis for an upgrade of a discharge. The ABCMR considers every case individually based upon its merits. Granting veteran's benefits is not within the purview of the ABCMR. 3.  The applicant knowingly went AWOL to attend to his mother and his siblings. After returning to military control he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. A court-martial could have imposed a bad conduct or dishonorable discharge for his AWOL offense. The evidence clearly shows he was properly and equitably discharged in accordance with the regulations in effect at the time. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The characterization of service he received is commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005405 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005405 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2